797] STATE TRIALS, 33 CHARLES II. 1681.-the Earl of Shaftesbury. him. I was with him another time after I made this Narrative, and he told me the two Mr. Godfreys were with the king at Windsor, and begged a pardon of his majesty for me, but the king would not grant it, but if he be an honest man, let him die at ny mercy, let him come in and declare what he knows. Said I, I would not have your lordship expose my cause in these days. This is the best time for it in the world, says he, if he doth not do it, he cannot expect to be long king of England. Pray, my lord, said I, what shall I do in the mean time? I will go beyond sea, said I. No, says he, do not leave the kingdom, he dares as well be hanged as meddle with you. I desired him a second time not to expose me to the king's fury, and I prayed him to help me to a little money to go beyond sea, for I was sure I could not be safe in England. Says he, have a care of your self; but, says he, he dares as well be hanged as meddle with you. Then I was in close conference with him one day, and I gave him so exact an account of all transactions from king Charles the First's reign, the commencement or coming to the crown, to this very day, that he was mightily satisfied; finding by me that I was a traveller, he was mightily pleased, and free with me. Pray, my lord, what model do you take, or intend to do? Says he, do you not think but there are families in England that have as great pretences to the crown as the king? Says he, there is the duke of Bucks, in the right of his mother, she was descended from Edward, one of the Edwards, and in her right he claims the barony of Ross, he hath as great a right to the crown of England, as ever any Stuart of them all. Jury. Speak that again. Haines. I was in conference with my lord Shaftesbury one day, and I gave him an exact account of all transactions, and I asked what they did intend to do with the government, if they pulled the king down. Says he, do you think there are no families in England, that have as much pretence to the crown as any of the Stuarts? I know none, my lord. Says he, there is the duke of Bucks, that is descended of the family of the Plantagenets; he named some of the Edwards, in her right he should have the barony of Ross, and in her right he has as good a title to the crown of England as any Stuart had. ever John Macnamarra sworn. Sir Fr. Withens. Pray give an account to the Jury of what discourses you had with my lord Shaftesbury. lord Macnamarra. My lord, I was with my Shaftesbury a little before he went to Oxford, before the parliament sat there, and my lord told me at that time, that he would take care, together with those that were with him at Oxford, for the witnesses that where concerned in the Popish Plot. Harrison. Speak out, pray, Sir. Macnamarra. My lord told me he would take care, with those that were with him, for [79$ the witnesses that were concerned in the Po- Sir Fr. Withens. Do you remember nothing at any other time ?-J. Macnamarru. No. Sir Fr. Withens. Did you hear any thing about deposing the king? J. Macnumarra. Yes, he did at the same time say, the king deserved to be deposed as much as ever king Richard the second did. Dennis Macnamarra. Mr. Saunders. Tell these gentlemen whether you have had any discourse with the earl of Shaftesbury. D. Macnamarra. He said, my lord, that the king was a man that ought not to be believed, and there was no belief in him, and that he ought to be deposed as well as king Richard the second, and that the duchess of Mazarine was one of his cabinet council, and that he did nothing but by her advice. Sir Fr. Withens. Begin again. L. C. J. Raise your voice a little, for the Jury do not hear you. Ď. Macnamurra. That the king is a mán that ought not to be believed, that there was no belief in him, and that he ought to be deposed as well as king Richard the second, and that the duchess of Mazarine was his cabinet council, and that he did nothing but by her L. C. J. When was this? D. Macnamarra. It was at the latter end of March or the beginning of April. Sir F. Withens. You say Mr. Ivy was by at the same time? D. Macnamarra. Yes. Sir F. Withens. Call Mr. Ivy. D. Macnamarra. In his own house. Edward Ivy sworn. Ivy. My lord, soon after the parliament was dissolved at Oxford, I was at my lord Shaftesbury's house, where he was speaking against the king, and said, that he was an unjust man, and unfit to reign, and that he was a Papist in his heart, and would introduce popery. Jury. Say that again. Iny. I tell you I was at my lord Shaftesbury's house, where he was then speaking against the king, saying, that he was altogether unjust, and not fit to reign, and he wandered he did not take example by his father before him, and did really believe that he was a Papist in his heart, and intended to introduce Popery. I was sometimes after with him, and I told him one Haines had told me he had something to discover about the death of sir Edmundbury Godfrey, and several other things, and my lord desired to see him, and I brought Mr. Haines, to his house, and he desired him that what he had to say he would put in writing, and he should have a pardon, and that if the king did deny it, as he dares not deny it, but if he does, we will rise upon him and force him. Sir F. Withens. Had you any other discourse at other times? Ivy. Yes, I had other discourse, but not to this purpose. Sir F. Withens. Was you frequently with him? Ivy. I was frequently with him; he desired at the time I was with him to bid Colledge to come to him, and I went and came again to Haines with instructions how to proceed, and I took his examination of him, and carried it to my lord, and he desired it might be explained what he meant by the tall black man; and, says he, if he does mean the king, he must explain himself, and speak of the king, or of the duke of York, or the rest; and if he does, we will take care of him as long as he lives; but unless he does, we will do nothing for him: And I was with him with my lord Shaftesbury, and my lord Shaftesbury did exclaim against the king. Sir F. Withens. What words did he speak? Ivy. He said he was alogether an unjust man, and not fit to reign, and that he believed he was a Papist in his heart, and designed to introduce Popery, and therefore they designed to depose him, and set up another in his stead. Sir F. Withens. Do you remember any discourse of Richard the Second at that time? Ivy. No, Sir, I do not remember any thing of it. Bernard Dennis sworn. Sir F. Withens. Pray tell the jury what discourse you had with the earl of Shaftesbury at any time, and what it was. B. Dennis. My lord, I came upon a design to make clear the plot in general, as far as I have travelled, as in Ireland, France, Spain, Maryland, Virginia and England, and upon that account I was brought before a justice of the peace in Westminster, November last, this time twelvemonth, and examined before justice Warcup, a justice of the peace, and from thence to the committee of the House of Commons, of whom colonel Birch (I believe he is here) was chairman, and gave in my evidence, and being called upon at the trial of the earl of Stafford, I was commended, as I suppose to the earl of Shaftesbury, and upon the account he sent me word of it,by William Hetherington, who was then very intimate with the earl of Shaftesbury, to my knowledge; and William Hetherington came to me several times, and he precisely was my maintainer at that time, that is, to find me whatever I wanted, and provide me my lodging, and carry me to some place where accomodation might be more better for me. Upon this account one time the earl of Shaftesbury sent to me desiring that I would wait upon him at his own house. I came to him, and there in the gallery of his own house, walking very slowly, he told me what I gave in of the plot in general was very good and sufficient, but as to the queen and the duke of York, that I should speak more home and positive against them; at least, that I might be a corroboration to others in what they swore against them. This was all at that present time, that the earl of Shaftesbury spake to me, and he desired me to go home to his lodgings. With that I went home, and within a month, it may be, or thereabouts, he sent for me again, by the same William Hetherington, and William Hetherington told me, that the earl of Shaftesbury would speak with me. So I came and waited upon his lordship at his own house, and says he, Mr. Dennis, I understand that you are a clergyman. Yes, my lord, said I. And, says he, I would advise you to take a black gown, and I will prefer you to a benefice, till such time as this business is over; and, says he, at the end of this business I will not fail to prefer you to a better, and in the mean time I would advise you to take a black gown; and this was a little as I remember, after the parliament was dissolved at Oxford; and he sent a gentleman out of his own house along with me, to a Doctor of Divinity living hard by Lincoln's-Inn-Fields, Dr. Burnet by name, as I remember, and the gentleman acquainted the Doctor what I was, and about what occasion I came there; so the Doctor indeed discoursed with me very familiarly, and rendered thanks to the earl for recommending me into his conversation rather than another's. What discourse we had then was nothing to the matter, it was about matters of conscience and re I ligion. But Mr. Colledge, that was the Joiner; here in town, and executed afterwards, being familiar with me, brought me to one Mr. Ferguson a minister, as I suppose of the Presbyterian form, for he goes in their garb as near as I can tell, and Mr. Ferguson at our first meeting was in Richard's coffee-house, in an upper room one pair of stairs, and in some company; and Colledge going to him brought him aside, and spake to him concerning me, and he came to me apart, and discoursed with me: From whence he brought me to a bookseller's shop, and bought for me the articles of the church of England, and in all these discourses there was a hand, as Colledge told me, of the earl of Shaftesbury, who did procure him, and sent to Dr. Burnet to bring me that way. I do not deny neither, that I had an inclination before I left Ireland, and when I was in Spain, and when I was in France, for to become a protestant, according to the laws and rules of the church of England. The force of what I have to say is this, The earl of Shaftesbury one day after all these things were past, and after the parliament were dissolved at Oxford, discoursing with me in his own house, major Manly being in the same room then, who lives beyond Tower-hill, he asked me what was the present occasion I came to him there? And it was pretty early in the morning, and the earl had a barber to trim him in his room. I told him my occasion was then, that I was something low in money, that I did a little want money at that time, and did not know to whom to speak for any thing but his lordship, and said, I came to tell you so. Well, said he, Mr. Dennis, I have appointed Mr. Rowse, John Rowse, whom you know, for to give you and maintain you in money; go to him especially once a week, and he will give you money, and said he, Mr. Dennis, what is the number of your name in the country, as near as you can tell, how many are you? My lord, said I, to tell you exactly what number they be of, I cannot at present, but within a little time I may tell you. I believe really there may be upon the matter 3 or 400 able men of my name, in the county where I was born. Says the earl of Shaftesbury, Mr. Dennis, I would very willingly have you advise those of your name, and those of your friends for to be in readiness, whenever occasion shall serve, and to stand by, if occasion should be, for to assist the commonwealth of England; for we do really intend to have England under a commonwealth and no crown; and, says he, we intend to live as we see Holland does; that is, to have a commonwealth and to have no supreme head, particular man, says he, or king, nor owe obedience to a crown; and, says he, we will extirpate the king, and all his family as near as we can; and Mr. Dennis, says he, I do admire that your nation should be such fools as they are, for it is very certain that king James, queen Elizabeth, king Charles the first, says he, and the king that now is, does wrong you to very VOL. VIII. destruction; and, says he, if you had been under a commonwealth, the commonwealth would take more pity of your nation, and the gentry of your nation, than any of them do now, in this time wherein the king governs, and upon this I do count the Irish fools. This is all that I can say. L. C. J. The king's counsel declare they will call no more witnesses, for they think they have called enough already, and there are several of them that do swear words that are treasonable in themselves, if you do desire to ask any of the witnesses any thing, you shall have them all called one by one. Foreman. My lord, we will walk up again, and consider what questions to ask, and come again presently. Mr. Papillon. It seems they will call no more witnesses than these. L. C. J. Not against the earl of Shaftesbury, being you are charged only with that. Mr. Papillon. It is so; my lord, but we pray we may be satisfied about the statute upon which the indictment is grounded, and that we may hear it read before we go up, because your lordship speaks of two different statutes, the 25th of Edward, and you mention the statute of the 13th of this king; your lordship in your discourse to the jury mentioned them both, we pray your lordship to acquaint us upon what statute it is grounded, whether upon both or one of them. L. C. J. Look ye, gentlemen, this is grounded upon the statute of this king, though there is enough to find an indictment of treason upon the statute of the 25th of Edward the third. That which is treason within the statute of the 25th of Edward the third, is treason within this statute, so this is the more copious statute; for as I told you before, this statute has enlarged that of Edward the third in a great many particulars; and therefore, look ye, gentlemen, always consider this, when one statute contains the matter of another, and enlarges it, the indictment is always upon the last statute, that being the more copious statute: But you are to consider both. L. C. J. North. The indictment is contra formam stutut', and it being contra formam statut', it may be understood, statutorum or statuti, so that all statutes that may be the foundation of this indictment you may go upon. Jury. We desire to know whether any of these witnesses stand indicted, or no? L. C. J. Look you, gentlemen, don't talk of this, but consider with yourselves, an examination of proofs concerning the credibility of the witnesses is not properly before you at this time; for I must tell you, and inform you as to that, you are not to examine proper. ly here concerning the credibility of the wit-, nesses, that is not to be proved or controverted here before you, that is matter upon a trial by the petty jury, for there the king will be heard for to defend the credit of his witnesses, if there be any thing that can be objected against 3 F them; it is proper for the prisoner to do that, you are only to see whether the statute be satisfied, in having matter that is treasonable, and having it witnessed by two men, by two witnesses, who are intended prima facie credible, unless you of your own knowledge know the contrary; for otherwise, you must consider what a disadvantage this would be in all such cases, if the credibility of the witnesses should be examined before the grand jury, where the king is not present, nor in a possibility of defending the credit of his witnesses; nor is the prisoner or the party indicted present; that is a proper objection when he comes upon his trial; for all men are intended credible, till there are objections against them, and till their credits come to be examined one side and the other. Mr. Papillon. My lord, if your lordship thinks good, I will beg this; I desire your lordship's pardon, whether your lordship doth not think that we are within the compass of our own understanding and consciences to give our judgment? L. C. J. Your own understanding and consciences, yes; but look ye, gentlemen Mr. Papillon. If we are not left to consider the credibility of the witnesses, we cannot satisfy our consciences. L. C. J. Look ye, gentlemen, you are to go according to the evidence of the witnesses; you are to consider of the case according to the things alledged and proved, unless you know any thing yourselves: But if any of you know any thing of your own knowledge, hat you ought to take into consideration, no doubt of it. Jury. Very well, my lord. L. C. J. The Grand Jury are to hear nothing, but the evidence against the prisoner; therefore for you to enter into proofs, or expect any here, concerning the credit of the witnesses, it is impossible for you to do justice at that rate. L. C. J. Let the witnesses be brought in One by one. Foreman. We will first ask a question of Mr. Gwyn. Foreman. Who put up the papers? Gwyn. I put up the papers myself. Foreman. Who went in with you? Gwyn. None but my lord's servants, I think, were there: But I put up the papers myself. Foreman. Pray, Sir, whose hand writing is that paper of? Gwyn. Indeed, Sir, I cannot tell. Foreman. How did it come into my lord Shaftesbury's closet? Gwyn. My lord, this is a strange question. Indeed, Sir, I cannot tell; all the papers that I found in that closet I put into that bag. AC. J. To satisfy the jury, was the 5 the closet before you came there? paper Gwyn. My lord, it was certainly there, for there I found it. I do not know the particular paper, but all the papers in that bag were there. L. C. J. From whom had you the key? Gwyn. From my lord Shaftesbury. Foreman. Do not you know, Sir, there was a discourse in the parliament of an Associa tion? Gwyn. Sir, I was not of the last parlia ment. Sir, I know nothing of it. Foreman. You have not heard then, that there was such a thing in parliament concerning an Association ? Gwyn. I have heard of an Association talked of. Foreman. Mr. Secretary, I would ask you some questions: If you did not know of a de bate in parliament of an Association? Secretary. I was not present at the debate; but there was a talk in town of an Association. Foreman. Did not you hear of it in parlia ment? Secretary. Indeed there was an answer to a message from the House of Commons that had something in it that did strongly imply an Association; but this particular Association I do not remember to have heard proposed. Foreman. Do not you remember in the House of Commons, Sir, it was read upon occasion of that bill? Secretary. I heard such a thing spoke of; but at the reading of it I was not present, to the best of my remembrance. Foreman. What date, Sir, was the warrant for my lord Shaftesbury's commitment? Secretary. I refer myself to the warrant, for that I do not know the date. L. C. J. Mr. Secretary, you must speak about the time that it was. Secretary. I was the man that had the honour to sign that warrant by which the Serjeant at Arms did apprehend my lord Shaftes bury, but what day of the month I do not remember; please, to the warrant, and to the Serjeant at and therefore I refer myself, if you Arms. M Foreman. Call Mr. Booth. Foreman. Did he talk to this purpose every Officer. He is not here, the tipstaff has him time? somewhere. Foreman. Is that witness a prisoner? L. C. J. Booth is a prisoner. Foreman. Then call Mr. Turbervile. Mr. Papillon. Is Mr. Turbervile there? Officer. Here is Mr. Booth come now. Mr. Godfrey. Put Turbervile out again. Foreman. Mr. Booth, you told me, of a discourse that passed between the lord Shaftesbury and yourself, we desire to know where it was, and when? Booth. It was in Thanet-house, Sir, where he lived, about a week or ten days before the parliament sat at Oxford. Foreman. The precise time? Booth. I think one Mr. Wilson led me into the chamber. Foreman. Who was present when the dis course was? Booth. None but he and I, Sir. L. C. J. If we have these noises, we will have every one of you put out of court. Att. Gen. Richardson, Richardson, pray turn them all out; they are brought in on purpose. Booth. It was not the first, second, nor third time that I had waited upon the lord of Shaftesbury. Foreman. In what room was it that my lord spake those words to you? Booth. It was in the room he usually sits in, on the left-hand as we came out of the long gallery, I think we passed through a room before it, wainscotted about, as I remember, and hung. I have been in that room with him four or five times, I am sure. Foreman. After this discourse with you, how long was it before you spake of it to any body else? 1 Booth. Truly I think I did not publish this discourse that my lord and I had, from the time it was, till within this seven or eight weeks. Foreman. You were never examined before then as a witness? Booth. No, Sir, I never was, nor no body will pretend it, I suppose. Foreman, To whom, Sir, did you give your first information? Booth. Sir, I sent my first information in writing to the lords in the council. Foreman. By whose hand? Booth. By the hand of Walter Banes. Foreman. You had several discourses with him; had you easy admission, or was it with difficulty you came into his company? Booth. I was admitted by the influence of captain Wilkinson at first, and ever after went with him, and had easy admittance and familiarity with him. Foreman. Was he with you every time? Booth. No, not every time; he was not this time with me. Booth. Something to this purpose he did talk every time, but not so fully; for I was first acquainted with this business of Oxford by captain Wilkinson, and I had a great desire to understand it from my lord's own mouth, be cause I would be satisfied in my lord's interest as well as his conduct. Foreman. Pray, Sir, what education have you had? Booth. I have had the education of a gentleman, an academical education. Foreman. Were you ever in orders? Booth. Yes. Foreman. Do you own yourself to be in orders still? Booth. How do you mean to be in orders? I tell you I was in orders; but I am not now beneficed. Foreman. Do you officiate as a minister? Foreman. Were you ever an attorney's clerk ?-Booth. Never. Foreman. Or a justice's clerk? Booth. Never, nor to no mortal. Foreman. Were you ever indicted for felony ?-Booth. No. L. C. J. That is a question not to be asked by any juryman of any witness whatsoever: no man is bound to discover any thing of that nature, that is criminal, concerning himself. Foreman. If it be pardoned, my lord, he may. L. C. J. Pardoned or not pardoned, he is not bound to accuse himself, nor to fix a scandal on himself. Booth. No, my lord, Nemo tenetur seipsum` prodere.' L. C. J. Sir, we must not suffer such questions; I will tell you the reason: it is proper for a prisoner that stands upon his justification to object it, but then the prisoner must prove it: it lies upon him to prove it. Mr. Pupillon. Mr. Booth, you told us of 50 men that were listed under captain Wilkin. son, do you know any more of them? Booth. I never directly conversed with any other. Mr. Papillon. Did you know any more of them? Booth. No, not directly I did not, but only by captain Wilkinson's information. Mr. Papillon. How many stories was that room where you talked with my lord? Booth. One pair of stairs, as I remember. Mr. Godfrey. Was it the right-hand as you came in ?-Booth. I think so. Mr. Godfrey. Was it the right-hand or the left? Booth. I went into the long gallery first and staid there about a quarter, or half an hour; and I remember very well I looked upon some maps that were there, to divert myself a while; and when I was called in, went out of the gallery on the left-hand, and went through another room before I came into my lord's room. |